Young Michael Rivera and his buddies were riding around, when one of them decided to cut off the sidewalk onto what could charitably be called a “beaten path” through some woods in the large Glen Oaks Village residential cooperative. Young Rivera was said to be an experienced rider, but this young BMX’er was no match for the big hole in the trail. He fell and was hurt. Then, of course, he sued.
That’s when the extreme lawyering commenced. The co-op argued that it was protected by the New York recreational user statute, because bicycling was one of the activities specifically mentioned in the law, and the trial was suitable as a bike trail. Not so, young Rivera’s mouthpiece claimed. The trail was just a path in the middle of a large residential community not designed for cycling.
The trial court, perhaps sympathetic to the young man’s crash found New York’s recreational user statute didn’t apply. But in an impressive piece of circular reasoning, the Appellate Division said that the trail was suitable for bicycling chiefly because Rivera and his buds were biking on it and other people had, too.
This reminds us somewhat of our mothers asking us whether we’d jump off a cliff just because our friends did, too. Anyway, shaky reasoning or not, the Appellate Division did justice to the intent of the recreational use statute: to protect landowners from liability when they make unimproved land available for the use of, as the Court put it, “recreationists.” The dictionary says it’s a good word, and the outcome in this case is probably a good result.
Rivera v. Glen Oaks Village Owners, Inc., 41 A.D.3d 817, 839 N.Y.S.2d 183, 2007 N.Y. Slip Op. 05718 (N.Y.A.D., 2007). Rivera and two of his friends went bicycling on a dirt trail located in a two-acre wooded area, which was part of a large residential cooperative community. The trail was 500 feet long and 10 feet wide, and “bumpy.” After traveling about 30 to 40 feet on the trail, Rivera came upon a 2 x 3’ hole in the ground. Rivera was unable to avoid the hole, and his front wheel went into the hole, causing him to be thrown over the bicycle’s handlebars and into the hole. He only saw the hole “maybe a second” before he fell into it. As a result of his fall, Rivera was injured. His family sued the owner of Glen Oaks Village Owners, Inc., the residential cooperative community, to recover damages. The trial court denied Glen Oaks’ motion for summary judgment, made on the basis that the New York recreational use statute applied and that the youth had assumed the risk of injury. Glen Oaks appealed.
Held: The case was reversed. The appellate court found that New York’s General Obligations Law §9-103, commonly known as the recreational use statute, applied to this case. The Court said that the sole purpose of the statute was to induce property owners – who might otherwise be reluctant to do so for fear of liability – to permit persons to come on their property to pursue specified activities. In return for opening up their lands for public use, property owners are provided immunity from liability. The statute applies whenever a user engaged in one of activities identified in statute, and he or she is recreating on land suitable for that activity. The requirement that property be physically conducive to a particular recreational activity — for purposes of determining whether a landowner is protected by the statute against claims of ordinary negligence — is satisfied when the property is the type which is not only physically conducive to a particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation.
The Court ruled that this so-called suitability test was a question of statutory interpretation and, therefore, a question of law for the court. The Court said that a substantial indicator that the property is physically conducive to a particular recreational activity is whether recreationists have used the property for that activity in the past. Such past use by participants in the sport manifests the fact that the property is physically conducive to it. Here, the recreational use statute applied to Rivera’s bicycle riding on dirt trail in large residential cooperative community because bicycling was an activity included in statute, and the trail was physically conducive to bicycling. Rivera’s use of the dirt trail — as well as the use by his friends — and the physical characteristics of the trial, established that it was physically conducive for bicycling.
The Court rejected Rivera’s claim that the fact that the trail was in the middle of a large private residential cooperative community rendered it unsuitable for bicycling. It held instead that the recreational use statute should be applied liberally to public and private land, to rural or urban property, whether developed or undeveloped.